JUDGMENT J.P. Semwal, J.
1. The sole accused-appellant has filed this appeal against the judgment and order dated 1 -2-1992 passed by the IInd Addl. Sessions Judge, Etawah, in sessions Trial No. 270 of 1990, convicting the appellant under Section 302/34 I.P.C. and sentencing him to death. The learned IInd Addl. Sessions Judge, Etawah has made reference under Section 366 Cr. P.C. for confirmation of the death sentence, which has been numbered as Reference No.2 of 1992.
2. The accused-appellant took his trial on the allegation that Smt. Uma Devi was subjected to cruelty and harassment by the accused and his other family members in connection with the demand of dowry and that on 8-2-1990 at 7.30 p.m. the accused in his house situated in village Naudhana, police station Bakewar, District Etawah in furtherence of his common intention with his brother and wife sprinkled kerosene oil over Smt. Uma Devi and set her on fire causing her death on account of burn injuries in District Hospital, Etawah on 7-3-1990, at 4.30 p.m.
3. The facts of the case as disclosed in the first information report and the prosecution evidence are that Smt. Uma Devi was married to Swami Shanker, son of Munshi Lal, about four years before the occurrence. Her husband Swami Shankar was doing service in Bombay and Smt. Uma Devi (deceased) was residing with her father-in-law, mother-in-law and elder brother of her husband (Jeth) in village Naudhana. After the marriage, the aforesaid persons used to harass and maltreat Smt. Uma Devi on account of demand of dowry. On 8-2-1990, Thursday, accused Sant Gopal at about 7.30 p.m. set fire on Smt. Uma Devi after sprinkling kerosene oil on her with an intention to commit her murder. Smt. Uma Devi in burnt and serious condition was brought to Mahewa Hospital with the help of the villagers. No intimation about the occurrence was sent to Har Dayal, the father of Smt. Uma Devi. Har Dayal, (p.w.1), however, learnt about the occurrence on Saturday and then he visited Mahewa Hospital and found the condition of his daughter serious. The Doctor was not giving proper treatment to Smt. Uma Devi under the influence of accused persons. Har Dayal (p.w.1) went to inform the police but they did not pay any heed, nor scribed the report. Har Dayal then went to Etawah and got prepared report dated 12-2-1990 (Ex. Ka-1). It was also mentioned in the report that the accused persons were not allowing the family members of the reporter to look after Smt. Uma Devi and were making their efforts to get the matter hushed up and that the dying declaration of Smt. Uma Devi was necessary. A request was made for relieving her from the clutches of the accused persons, so that proper treatment may be given to her to save her life. Har Dayal (p.w.1) gave this report (Ex. Ka-1) to the Senior Superintendent of police, Etawah who after making endorsement on this report asked the reporter to hand over this report at police station Bakewar. Har Dayal (p.w.1) handed over the report (Ex. Ka-1) to Head Constable Sant Pal Singh (p.w.2) on the same day, i.e. 12-2-1990, at 2.30 p.m. who prepared the formal chik-report (Ex. Ka-2) and registered the case at serial No. 22 of the General Diary under Section 498A, I.P.C. (Vide G.D. Extract, Ex. Ka-3), against four persons, namely Munshi Lal, Sant Gopal, Sri Ram and Smt. Ladeti Devi. The investigation of the case was entrusted to S.I. Saudan Singh (p.w.9).
4. Smt. Uma Devi with burn-injuries was brought to Mahewa Hospital on 9-2-1990 at 12 noon by Surendra alias Suresh. Dr. G.P. Chaudhari (p.w.5) who was Medical Officer In-charge of Public Health Centre, Mahewa, examined the injuries of Smt. Uma Devi and found the following injuries on her person (vide injury report, Ex. Ka.6).
(1) Burn on both sides of face, fore-head, both of neck with bullows formation, smell of kerosene was present with grass oedema.
(2) Burn with bullows formation on (L) arm upper and forearm and hand both sides.
(3) Burn on both sides of (r) hand anterior and posterior side upper and forearm with bullows formation.
(4) Burn with bullows formation on chest both sides and upper abdomen.
(5) Burn on both sides of scapula back with bullows formation.
5. Dr. Chaudhary found smell of kerosene present, General Condition of Smt. Uma Devi was poor and she was unconscious, pulse was low and B.P. not recordable.
6. In the opinion of Dr. Chaudhary, all the above injuries were caused by burn due to some inflammable object, i.e. Kerosene. Duration of injuries was fresh.
7. The injury report was entered by Dr. Chaudhary in the Accident Register at page 48. Bed Head Ticket of Smt. Uma Devi (Ex. Ka-7) was prepared by Dr. Chaudhary. He sent a letter to the Station Officer, Bakewar (vide Ex. Ka-8) informing that Smt. Uma Devi has been brought to Public Health Centre, Mahewa, in burnt and unconscious condition by Surendra alias Suresh of the same village. On 11-2-1990, according to Dr. Chaudhary (p.w.5), when Smt. Uma Devi became semi-conscious, he sent intimation for recording dying declaration of Smt. Uma Devi by Sub-Divisional Magistrate/Tehsildar, Bharthana. In reply to this intimation, Dr. Chaudhary recieved a letter from the station officer, Bakewar informing Dr. Chaudhary that the Head Quarter of Tehsildar and Sub-Divisional Magistrate was not situate at Bakewar and requested the Medical Officer-In-charge, Public Health Centre, Mahewa to record her statement himself as it may take time to inform the Sub-Divisional Magistrate and Tehsildar. According to Dr. Chaudhary, this report of police station Bakewar, paper No. 31-Ka, was received by him at 6. p.m. on 11-2-1990 while he had already referred Smt. Uma Devi to District Hospital, Etawah at 6 p.m. with a letter (Ex.Ka-9).
8. Smt. Uma Devi was admitted in the District Hospital, Etawah on 11-2-1990, at 7.00 p.m. Dr. A.K. Gupta (p.w.4) was Emergency Medical Officer at the District Hospital Etawah on 12-2-1990. He intimated the station House officer, Kotwali, Etawah regarding serious condition of the patient and for making arrangement for recording her dying-declaration (vide letter Ex. Ka-5). On 12-2-1990, dying-declaration of Smt. Uma Devi was recorded by Sri Deva Sheesh Panda (p.w.2) who was the Sub-Divisional Magistrate, Etawah at the relevant time. Before and after recording the dying-Declaration, he obtained certificates from Dr. S.C. Dubey (p.w.6) that Smt. Uma Devi was fit for giving dying-declaration (vide Ex. Ka-10 and Ex, Ka-11).
9. I.O. Saudan Singh (p.w.9) recorded the statement of the reporter on 12-2-1990 at the police station. On 12-2-1990 he went to the place of occurrence and recorded the statement of Surendra alias Suresh, Ashok Kumar, Gore Lal Ram Prakash and Raj Kumar. On 13-2-1990 he also inspected the spot and prepared a site plan (Ex. Ka-18). He has shown the house of Sant Gopal by letter 'A' where Smt. Uma Devi was burnt and the place in that the Chabutara where Smt. Uma Devi was found lying in burnt condition by cross mark. He also took the statement of Smt. Uma Devi in Mahewa Hospital on 1-3-1990 (vide Ex. Ka-20). Thereafter, the investigation of the case was not done by him.
10. Smt. Uma Devi expired in the District Hospital, Etawah on 7-3-90 at 4.30 p.m. Dr. S.C. Dubey (p.w. 6) made endorsement to that effect in the Bed Head Ticket (Ex. Ka-12). Intimation of the death of Smt. Uma Devi was sent by Dr. S.C. Dubey (p.w.6) to the station House Officer, Kotwali, Etawah (vide letter Ex. Ka-13). S.I. Hiralal Sharma (p.w. 7) received the copy of Rapat (G.D. No. 42) dated 7-3-90 at 4.45 p.m. and proceeded to the District Hospital, Etawah on 8-3-90 for holding inquest on the dead-body of Smt. Uma Devi. He after appointing the panches held the inquest and prepared the inquest report (Ex.Ka-14), Photolas (Ex. Ka.-15) and report of Chief Medical Officer (Ex. Ka-16). Thereafter, the dead-body was sent for post mortem examination in a sealed bundle through Constable --824, Raj Kumar, and Constable --839 Raja Ram Saini.
11. Dr. J.C. Agrawal (p.w.8) was posted as Medical Officer District (women) Hospital, Etawah on 8-3-1990. The dead-body of Smt. Uma Devi was produced before him in sealed bundle and he found the seals in tact in conformity with the sample seal. Dr. Agrawal performed autopsy on the dead-body of Smt. Uma Devi on 8-3-1990 at 3 p.m. According to him, the age of the deceased was about 23 years and she was average body-built, rigor mortis was present on both extremities, decompostion was not present. Dr. B.C. Agrawal (p.w.8), found the following antemortem injuries on the dead body of the deceased (vide postmortem report, Ex.Ka-17). Superficial and deep burns on both sides of chest, whole of face, front of neck, both shoulders, whole of (L) upper arm except little portion on the back and front of fore-arm and half portion of back forearm with partial burn of (L) hand.
Superficial and deep burn on front aspect of (R) upper and forearm. Burn area showing healing and graftation at places and pus present at place, surgical dress present on both arms.
Superficial and deep burn on back of Chest upper part and both shoulders.
On Internal Examination, Dr. Agrawal found membranes and pleura congested, spinal cord not exposed, pleara larynx, tranchea, bronchi slightly congested, both lungs congested heavily, on dissection pus came out, (R) heart full and (L) heart empty, etc.
12. In the opinion of Dr. Agrawal the cause of the death of Smt. Uma Devi was pneumonities as a result of septicamai and Toxaemia due to burning.
13. The investigation of the case was later on entrusted to Circle Officer Bharthana Rameshwar Singh Chandel (p.w. 10) and he investigated the case from 23-3-90 to 26-3-90. He interrogated previous I.O. Saudan singh, Gore Lal and Munshi Lal s/o Yad Ram. He also inspected the spot and prepared the site plan (Ex.Ka-19). He also recorded statements of Suresh Kumar, Bachchan, Ram Kumar s/o Mewa Lal, Ram Prakash s/o Banshi, Har Dayal, Khyali Ram, s/o Mewa Lal, Teli, Ahibaran s/o of Munshi Lal and Rejendra Son of Siya Ram.
14. After the transfer of I.O. Rameshwar Singh Chandel, the remaining investigation of the case was done by his successor C.O. Madhu Prakash Srivastava (P.W. 11) from 30-5-90, who after recording the statements of witnesses submitted charge-sheet (Ex. Ka. 2) against accused Sant Gopal alias Bhagat under Sections 498A and 304B, I.P.C. Accused appellant was sent up to stand his trial under Section 498A and 304B I.P.C. The learned IIIrd Addl. Sessions Judge framed charges under the said Sections against the accused appellant, but subsequently on the application of the prosecution the learned IIIrd Addl. Sessions Judge framed amended Charge under Section 302/34 I.P.C. against the accused-appellant.
15. The prosecution in support of its case examined in all eleven witnesses. Har Dayal (P.W.I) is the father of the deceased Smt. Uma Devi who had lodged the first information report (Ex. Ka-1) on 12-2-1990 at 14.12. P.M. and unfolded the prosecution story, H.C. Sant Pal Singh (P.W.2) had prepared the chik report and registered the case on 12-2-1990 (vide Ex. Ka-2). Dr. A.K. Gupta (P.W. 4) was Emergency Medical Officer in District Hospital, Etawah and he had sent the information to the Station House Officer Kotwali, Etawah, regarding the serious condition of Smt. Uma Devi and for making arrangement for recording the dying-declaration of Smt. Uma Devi. Dr. G.P. Chaudhary (P.W. 5) was the medical officer In-charge, Public Health Centre, Mahewa, where Smt. Uma Devi was first brought in burnt condition on 9-2-1990. He examined her injuries and prepared the injury report (Ex. Ka-6) and also prepared Bed Head Ticket (Ex. Ka-7) of Smt. Uma Devi who was admitted in the Hospital on 9-2-1990 at 12 noon and referred her to the District Hospital Etawah on 11-2-1990 at 6 p.m. Dr. S.C. Dubey (P.W. 6) was posted at District Hospital, Etawah on 12-2-1990 and he gave certificates regarding the fitness of Smt. Uma Devi before and after the recording of her dying-declaration (vide Ex. Ka-10 and Ex.Ka-11) appended on the dying declaration (Ex. Ka-4). He also made endorsement o the Bed Head Ticket (Ex. Ka 12) regarding the death of Smt. Uma Devi on 7-3-1990 at 4.30 p.m. in District Hospital, Etawah and sent information in that regard to station House Officer, Kotwali, Etawah (Ex. Ka. 13). S.I. Hira Lal Sharma (P.W. 7) had held inquest on the dead-body of Smt. Uma Devi and prepared the inquest report and connected papers (vide Ex.Ka-14 to Ex. Ka 16). Dr. J.C. Agrawal (P.W. 8) performed autopsy on the dead-body of Smt. Uma Devi on 8-3-1990 at 3 P.M. in the mortuary and prepared the post mortem report (Ex. Ka-17). S.I. Saddan Singh (P.W. 9) had investigated the case after the lodging of the first information report by Har Dayal (P.W. 1) and he investigated the case upto 1-3-1990. S.I. Rameshwar Singh (P.W. 10) was the Circle Officer Bharthana and he investigated the case from 23-3-1990 to 26-4-1990. S.I. Madhur Prakash (P.W. 11) was the successor of S.I. Rameshwar Singh, Circle Officer, Bharthana and he investigated the case from 30-5-1990 and submitted the charge-sheet (Ex. Ka-2) after completing the investigation.
16. Accused Sant Gopal denied the charges and pleaded not guilty. In his statement under Section 313 Cr.P.C. accused Sant Gopal has admitted the marriage of his brother Swami Shankar with Smt. Uma Devi four years before the occurrence and that he is the Jeth of Smt. Uma Devi (elder brother of her husband). He also admitted that at the time of occurrence Smt. Uma Devi was in his house in village Naudhana, P.S. Bakewar, district Itawah. He however, denied the allegations regarding demand of dowry and harassment and the allegations regarding burning of Smt. Uma Devi after sprinkling kerosene oil on her by him. He, however, asserted that he had taken Smt. Uma Devi with him to Mahewa Govt. Hospital on 9-2-1990. He showed his ignorance about the report lodged on 12-2-1990 by Har Dayal, about medical examination of Smt. Uma Devi at Govt. Hospital Mahewa, about the death of Smt. Uma Devi on 7-3-1990 in Govt. Hospital, Etawah on account of burn injuries caused by him. He also showed his ignorance about the recording of the dying declaration of Smt. Uma Devi (Ex. Ka. 4) by Sri Deva Sheesh Panda (P.W. 3) who was the sub-Divisional Magistrate, Etawah on 12-2-1990, and regarding the certificates (Ex. Ka-10 and Ex. Ka-11) having been given by Doctor S.C. Dubey (P.W. 6). Similarly, he showed his ignorance about the inquest report and other connected papers and also about the statement of Smt. Uma Devi recorded by Sub-Inspector Saudan Singh (Ex. Ka-20). He pleaded that proceedings conducted by the Investigating Officers are false and that the prosecution witnesses gave evidence due to enmity and partibandi. No defence was adduced by the accused-appellant.
17. On consideration of evidence, the Learned Additional Sessions Judge, came to the conclusion that the prosecution succeeded to prove its case against the accused under Section 302/34 I.P.C. and passed the order of conviction and sentence as stated above. The learned Sessions Judge, however, found the prosecution case under Section 498A and 304B I.P.C. not proved beyond reasonable doubt and he thus acquitted the accused of the said offences.
18. We have heard Shri. G.P. Dixit, learned Counsel for the appellant as well as learned Government Advocate at great length and have carefully perused the record of the case and have considered the case law on the point.
19. It will be relevant to set out facts which are either admitted or not disputed. The deceased Smt. Uma Devi was the daughter of Har Dayal P.W. 1 and she was married to Swami Shanker, brother of the accused Sant Gopal about 4 years before the occurrence. Smt. Urmila Devi is the wife of Sant Gopal and is Jethani of the deceased. Sri Ram is brother of Sant Gopal and is Jeth of the deceased. Munshi and Smt. Ladai Devi are father-in-law and mother-in-law of the deceased. Swami Shanker husband" of the deceased, was doing service at Bombay at the relevant point of time. At the time of occurrence, Smt. Uma Devi was residing in the house of appellant Sant Gopal.
20. It is not disputed that Smt. Uma Devi had received burn injuries and died as a result thereof. There is no doubt from the evidence on record that Smt. Uma Devi died as a result of Septicaemia and Taxaemia due to burn injuries, Dr. J.C. Agrawal, P.W. 8, has categorically deposed in that regard. Nothing material has been elicited during his cross-examination.
21. Admittedly, Smt. Uma Devi was brought to public Health Centre, Mahewa on 9-2-1990. The accused Sant Gopal has asserted in his statement under Section 313 Cr. P.C. that he had taken Smt. Uma Devi to Mahewa Hospital on 9-2-1990 which, however, is belied from the evidence and material on record. Smt. Uma Devi was brought to Mahewa Hospital by Surender alias Suresh of Village Naudhana on 9-2-1990 at 12 noon, and Dr. G.P. Chaudhary P.W. 5 had admitted her in the hospital and sent information to Station Officer, Police Station Bakewar, to the effect that Smt. Uma Devi was brought by Surendra alias Suresh resident of Naudhana Police Station Bakewar and she was in unconscious state, vide exhibit Ka-8, which has not been disputed. Dr. G.P. Chaudhry P.W. 5 who examined the injuries of Smt. Uma Devi found burn injuries on her person, vide injury report Ex. Ka-6, and he found kerosene smell present. According to him, all the injuries of Smt. Uma Devi were possible by Kerosene burn and the injuries of Smt. Uma Devi could have been received by her on 8-2-1990 at about 7-7.30 P.M. by setting her on fire after sprinkling kerosene. Nothing has been elicited in his searching cross-examination. To a court question Dr. Chaudhry P.W. 5 stated that there was 18% bum on chest, 18% burn on both fore arms, 9% burn on face and neck and 9% on back portion and in this way the burn injury was 50% to 55%. The evidence of Dr. G.P. Chaudhry P.W. 5 and Dr. J.C. Agrawal P.W. 8, fully establishes that Smt. Uma Devi, had received burn injuries due to kerosene burning and she died on account of said burn injuries.
22. From the dying declaration of Smt. Uma Devi recorded on 12-2-1990, vide Ex. Ka-4, it is borne out that occurrence had taken place on Thursday i.e. 8-2-1990 and she was set on fire after kerosene was sprinkled on her. She has implicated her two Jeths namely Sant Gopal and Shri Ram who had set her on fire. Her Jethani bolted from outside. It is thus evident from the evidence and material on record that Smt. Uma Devi received burn injuries on 8-2-1990 (Thursday) at about 7-7.30 P.M. in the house of Sant Gopal appellant and she was brought to Mahewa Hospital on 9-2-1990 at 12 noon in burnt and unconscious condition by Surendra alias Suresh of village Naudhana and subsequently she was referred to District Hospital Etawah on 11-2-1990 at 5.00 P.M. and she remained in the emergency ward in District Hospital Etawah where she died on 7-3-1990 at 4.30 P.M. on account of burn injuries received by her on 8-2-1990. It has been admitted by the accused Sant Gopal in answer to question No. 2 in his statement Under Section 313 Cr. P.C. that Smt. Uma Devi was in his house at the time of occurrence.
23. There is no eye witness of the occurrence in this case nor it can be expected in such a case where the occurrence takes place inside the house. The Supreme Court has observed in the case of Om Prakash v. State of Punjab reported in (1992) 4 JT (SC) 524: (1992 Cri LJ 3935 at p. 3938 Para 11):-- "It is the duty of the Court, in a case of death because of torture and demand of dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to how the death has taken place. While judging the evidence and the circumstances of the case, the court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. The finding of guilt on the charge of murder has to be recorded on the basis of circumstances of each case and the evidence adduced before the court.
24. In the aforesaid case, the victim Rita was in her room in the house of the appellants, and she was brought in the inner compound of the house and Kerosene oil was sprinkled on her body and Sheela Wanti-mother-in-law brought the kerosene oil and sprinkled it on her body and then Om Prakash, husband set her on fire. The father-in-law had said that she should be burnt. The lower court convicted and sentenced Om Prakash under Section 302 I.P.C. and acquitted father-in-law and mother-in-law. On appeal, the Punjab and Haryana High Court set-aside the order of acquittal and convicted them under Section 302/ 34 I.P.C.
25. In that case, it was submitted on behalf of the appellant that it appears that Smt. Rita committed suicide and the appellants have been falsely implicated for an offence of murder by the interested witnesses. The Supreme Court observed that, it is true that some times a case of suicide is presented as a case of homicide specially when the death is due to burn injuries. But it need not be pointed out that whenever the victim of torture commits suicide she leaves behind some evidence, may be circumstantial in nature to indicate that it is not a case of homicide but of suicide. In the present case, the death of Smt. Uma Devi on account of burn injuries is established beyond reasonable doubt and has not been disputed.
26. The prosecution has relied on dying declarations and the circumstances and conduct of the accused in support of its case. The defence is bare denial.
27. Firstly, it has to be seen whether it is the case of homicide or suicide or accidental death. The burn injuries could have been either suicidal, or accidental or homicidal. The defence has no where suggested that it was suicidal or accidental nor there is any material on record from which it may be inferred. On the other hand, the evidence of Dr. G.P. Chaudhry P.W. 5 and Dr. J.C. Agrawal P.W. 8 and the statement of the deceased in the dying declarations, does not leave any room for doubt that kerosene was sprinkled on her and she was set on fire and that she died on account of said burn injuries. There is no eye witness of the occurrence. Har Dayal P.W. 1, who lodged the first information report and unfolded the prosecution case, is also not an eye witness. There are three dying declarations alleged to have been made by the deceased. The first dying declaration is the oral dying declaration alleged to have been made by the deceased to Har Dayal P.W. 1 in P.H.C. Mahewa. The Second Dying Declaration was recorded by Sri Deva Sheesh Panda, Sub-Divisional Magistrate, P.W. 3 on 12-2-1990 in district hospital Etawah, vide Ex. Ka-4, which contains certificates Ex. Ka. 10 and 11 of Dr. S.C. Dube. The Third Dying Declaration is said to have been recorded by the Investigating Officer, Sub-Inspector Saudan Singh P.W. 9 on 1-3-1993, in District Hospital Etawah vide Ex. Ka-20.
28. The argument of the learned Government Advocate was that, in all the three dying declarations Sant Gopal appellant has been implicated. Learned Counsel for the appellant, however, argued that there is inconsistency in these three dying declarations, and therefore, all the three dying declarations may be discarded being inconsistent.
29. Let us examine the three dying declarations. First alleged dying declaration is oral said to have been made by Smt. Uma Devi to Har Dayal P.W. 1 in Mahewa hospital. According to Har Dayal P.W. 1 when he came to Mahewa hospital on the third day after receiving information, he found his daughter in burnt condition and her condition was serious. According to him, he enquired from his daughter as to how she was burnt whereupon she told him that Sant Gopal and Jethani (i.e. wife of Sant Gopal), first beat her and then poured kerosene on her and set her on fire. The lower court has rightly, discarded the first dying declaration which does not inspire any confidence. Har Dayal P.W. 1, had lodged the report Ex. Ka-1 on 12-2-1990 with the S.S.P. Etawah which was subsequently registered at P.S. Bakewar. According to Har Dayal himself, Smt. Uma Devi had made statement to him about the occurrence in Mahewa Hospital. Smt. Uma Devi remained in Mahewa hospital upto 5 P.M. only on 11-2-1990 and thereafter she had been referred to district hospital Etawah. In the report Ex. Ka-1, there is no mention about any statement of Smt. Uma Devi to Har Dayal. On the other hand, it is written in this report that the accused were making efforts to get the matter hushed up and that dying declaration of Smt. Uma Devi was necessary. This report Ex. Ka-1 belies the first dying declaration theory. Apart from this, the evidence of Dr. G.P. Chaudhry P.W. 5 goes to show that Smt. Uma Devi remained unconscious upto 10th February 1990 and that she had gained semi consciousness on 11-2-1990. There is no evidence to show that when Har Dayal P.W.1 made enquiry and Smt. Uma Devi narrated about the occurrence to him, she was in fit mental condition to make such statement. It does not thus, stand to belief that Smt. Uma Devi had made oral statement as alleged by Har Dayal P.W. 1.
29-A. The third dying declaration was also oral statement alleged to have been recorded by Sub-Inspector Saudan Singh P.W. 9, under Section 161 Cr. P.C. in district Hospital Etawah on 1-3-1990, vide Ex. Ka-20. According to this, statement, on the day of occurrence, there was quarrel between Uma Devi and Sant Gopal's wife who was abusing her. She complained about it to Sant Gopal who set her on fire after sprinkling kerosene. No one had saved her. Sri Ram also came and he did not save her. Father-in-law was not in the house. Mother-in-law subsequently came. She remained crying through out night that she should be taken to hospital but no one paid any heed. Next day village people had taken her to hospital. This dying declaration has also been rightly discarded by the lower court. The dying declaration of Uma Devi had been recorded by the magistrate on 12-2-1990 and thus, there does not appear any plausible reason for the Investigating Officer to have recorded her dying declaration on 1-3-1990. The third dying declaration recorded by the Investigating Officer S.I. Saudan Singh P.W. 9 in the hospital is suspect since he was interested in the success of the investigation (See AIR 1976 SC 2199.: (1976 Cri LJ 1718) Munnu Raja v. State of Madhya Pradesh).
30. Smt. Uma Devi was in emergency ward of District hospital Etawah and the Investigating Officer did not take any certificate from doctor regarding her fit mental condition. Accordingly, we also discard this dying declaration made by Smt. Uma Devi to Investigating Officer S.I. Saudan Singh.
31. Now there remains second dying declaration of the deceased Smt. Uma Devi (Ex. Ka-4) which was recorded in her own words by Sri Deva Sheesh Panda, Sub-Divisional Magistrate P.W. 3, on 12-2-1990, which reads as follows:
^^;g ?kVuk czgLifrokj dh jkr dh gS A eq>s esjh cM+h ,oa e>ys tsB us tyk fn;k A feV~Vh dk rsy Mkydj tyk fn;k A esjk tsB dk uke lUr xksiky ,oa Jhjke A esjk ifr cEcbZ esa QSDVªh esa dke djrk gS vkSj vHkh ogha gS A dksbZ cpk;k ugh ckgj ls dq.Mh tsBkuh us yxk fn;h A esjs lqlqj e¡q'khyky eq>s vLirky ysdj vk;s A eq>s blfy;s tyk fn;k D;ksafd esjs ekrk&firk us dqN ugh fn;k Fkk A**
32. The prosecution case rests on this dying declaration which is an important piece of evidence against the appellant. This dying declaration is entitled to grant weight and it can form the sole basis of conviction.
33. Statement written or verbal of relevant facts made by a person who is dead is called a 'dying declaration'. Dying declaration is an important piece of evidence and conviction can be based solely on the dying declaration. In the present days when there is spate of dowry deaths, dying declaration has assumed much importance. In the words of Justice Mohan of Supreme Court:
Every time a case relating to dowry death comes up, it causes ripples in the pool of the conscience of this Court. Nothing could be more barbarous, nothing could be more heinous than this sort of crime. The root cause for killing young bride or daughter-in-law is avarice and greed. All tender feeling which alone make the humanity noble disappear from the heart." (1992 All Cri R 530: (1992 Cri LJ 2919) Smt. Paniben v. State of Gujarat).
34. The principle on which the dying declarations are admitted in evidence is indicated in legal maxim:
Nemo moriturus praesumuntur mentiri" i.e. a man will not meet his Maker with a lie in his mouth.
Truth sits on the lips of dying man as said by Mathew Arnold:--
The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice (See Eyre C.V. in R.V. Woodcock (1789) 1-Leach 500).
35. Under the English Law, it is essential to the admissibility of the dying declaration that the declarant must have entertained a settled hopeless expectation of death, death being imminent or impending, but he need not have been expecting immediate death. The fact that the deceased believed that his death was impending may be shown by the statements made by him at the time, or by evidence that his physical condition or the nature of wounds, injuries inflicted upon him were such that he must have so believed (See Halsbury's Laws of England Vol. 11 IVth Edn. Page 255). Indian Law does not put such restrictions in Section 32 of the Indian Evidence Act. It is not required under Section 32 of the Indian Evidence Act that the maker should be in expectation of imminent death, nor is it restricted to cases of homicide only. It is thus immaterial whether there existed any expectation of death at the time of dying declaration. Before a dying declaration may be admitted, it must be proved that the person who made it is dead. When a person making a dying declaration survives his statement cannot be admitted under Section 32 of the Indian Evidence Act but may be relied on under Section 157 to corroborate or under Section 145 of the said Act to contradict his statement in Court. A dying declaration which records every word of a, dying man unattended by interested person is a most valuable evidence. It is absolutely necessary for the protection of society that the dying declaration should be received otherwise an accused person could not be held liable for the commission of a crime, particularly in such a case as is the present one where a woman is burnt inside the house of her in-laws.
36. The dying declaration is entitled to great weight. The Court has to satisfy itself that the dying declaration is of such a nature as to inspire full confidence in the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. The Court has to be further satisfied that the deceased was in a fit state of mind and had a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration as has been held by the Supreme Court in a catena of cases. Statements by deceased as to the cause of his death are admissible not only against the person who actually caused the death, about also against other person concerned in the transactions which resulted in his death.
37. The Supreme Court has, in case of Khushal Rao v. State of Bombay, reported in AIR 1958 SC 22: (1992 Cri LJ 106) laid down the following principles in regard to reliance on a dying declaration which is as follows:--
(i) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (ii) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made, (iii) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence, (iv) that a dying declaration stands on the same footing as another piece of evidence has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence, (v) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character, and (vi) that in order to test the reliability of a dying declaration the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
38. The ratio in the aforesaid case of Khushal Rao has been followed in a number of subsequent cases. In case of K. Ramachandra Reddy v. Public Prosecutor reported in AIR 1976 SC 1994: (1976 Cri LJ 1548) (Para 6), the Supreme Court has held:
Dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.
39. In a recent case of Smt. Paniben v. State of Gujarat, reported in 1992 All Cri R 530: (1992 Cri LJ 2919) the Supreme Court has summed up principles governing dying declarations in para 17 of the report which are as under:--
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation on oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:--
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration, (Mannu Raj v. State of M.P., (1976) 2 SCR 764: (1976 Cri LJ 1718).
(ii) If the Court is satisfied that the dying declaration' is true and voluntary it can base conviction on it, without corroboration, [State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416: (1986 Cri LJ 836), Ramavati Devi v. State of Bihar, AIR 1983 SC 164: (1983 Cri LJ 221)].
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased has opportunity to observe and identify the assailants and was in a fit state to make the declaration, (Ram Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994: (1976 Cri LJ 1548)).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence, (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264: (1974 Cri LJ 361)).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected, (Kake Singh v. State of M.P., AIR 1982 SC 1021: (1982 Cri LJ 986)).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction, (Ram Manorath v. State of U.P., 1981 SCC (Cri) 581)).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617: (1981 Cri LJ 9)).
(viii) Equally, merely because it is a brief statement, it is not to be discarded, on the contrary, the shortness of the statement itself guarantees truth, (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505: (1979 Cri LJ 1122)).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration the medical opinion cannot prevail, (Nanahau Ram v. State, AIR 1988 SC 912: (1988 Cri LJ 936)).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon, (State of U.P. v. Madan Mohan, AIR 1989 SC 1519: (1989 Cri LJ 1485)).
In another case of Smt. Kamla v. State of Punjab, reported in (1992) 6 JT (SC) 707: (1993 Cri LJ 68), it has been held in para 5:
It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (Vide Khushal Rao v. State of Bombay, 1958 SCR 552: (1958 Cri LJ 106). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent, if a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
40. In that case, there were four dying declarations made by the deceased. Three of them were recorded by the doctors and one by the Sub-Inspector. In the first dying declaration, the deceased had implicated her mother-in-law having sprinkled kerosene on her from behind and burnt her. In the second dying declaration, she claimed to have got burnt by her clothes catching fire from a stove. In the third dying declaration, she had stated that somebody had put her on fire from behind and that it might have been set in by her parents4in-law. In the fourth dying declaration, she implicated her father-in-law and mother-in-law having poured kerosene over her and set fire on her. The deceased in all her dying declarations had stated that her husband D.W. 2 rescued her. The Supreme Court thus observed that evidence of D.W. 2 cannot simply be brushed aside on the ground that he might have given version to save his parents and his evidence further shows that the occurrence could be due to accident. Viewed from this angle also, the version given in the statement made before C.W. 1 in Ex. DA (second dying delcaration) that it was due to accident is not improbable. In these circumstances, the Supreme Court observed that the irresistible conclusion is that the dying declarations are inconsistent and in such a situation one just cannot pick out one dying declaration out of four and base the conviction of the appellant on the sole basis of such a dying declaration.
41. The learned Counsel for the appellant argued that the deceased had made three dying declarations in the instant case and they being inconsistent, no reliance can be placed on any of them. This contention has no force because the first and third dying declarations have been discarded by the trial court as well as by us.
42. Even if for arguments sake we accept the contention of the learned Counsel, even then there is no inconsistency in all the three dying declarations. In all the three dying declarations, it is a case of murder and not of accident or suicide. In the first oral dying declaration, Sant Gopal and his wife are implicated and they are assigned the role of sprinkling kerosene and setting Smt. Uma Devi on fire. In the second dying declaration recorded by the Magistrate, Sant Gopal and his brother Sri Ram are implicated having been assigned such role and the role of Jethani is alleged to be that she had bolted the room from outside. In the third dying declaration, alleged to have been made to the Investigating Officer, Saudan Singh P.W. 6, she has implicated Sant Gopal who is alleged to have poured kerosene and set her on fire. The role of Sant Gopal's wife was that she was abusing her and the role of Sri Ram was that he had come there but had not saved her. It thus appears that the case of the prosecution is consistent regarding sprinkling of kerosene on Smt. Uma Devi and setting her on fire.
43. In material particulars, the case of the prosecution remains the same that Smt. Uma Devi was set on fire after sprinkling kerosene. In none of these three dying declarations the deceased had made statement that she had caught fire accidentally or that she wanted to commit suicide. The Supreme Court, has in the case of Rabi Chandra Pradhan v. State of Orissa, AIR 1980 SC 1738: (1980 Cri LJ 1257), held that failure to implicate in the second dying declaration one of the accused whose name was mentioned in the first one, would not detract from its credibility. It has also been held by the Supreme Court in the case of Som Nath v. State of Haryana, reported in AIR 1980 SC 1226: (1980 Cri LJ 925) that if basically there is credibility minor discrepancies would not make a dying declaration unreliable. A dying declaration cannot be judged by the standard of fullness of particulars. It has also been held by the Supreme Court in the case of Munnu Raja v. State of M.P., reported in AIR 1976SC2199: (1976 Cri LJ 1718), that law does not require that maker of the dying declaration must cover the whole incident or narrate the case history. In order that the court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its term or its tenor. There is no law that where more than one dying declarations are made by the deceased, the prosecution case necessarily is a false one and no reliance can be placed on dying declarations. In a number of cases, before the Supreme Court, there were several dying declarations which were accepted [See Jorubha Juzer Singh v. State of Gujarat, AIR 1980 SC 358: (1980Cri LJ 314); Rabi Chand Pradhan v. State of Orissa, AIR 1980 SC 1738: (1980 Cri LJ 1257); Smt. Paniben v. State of Gujarat, 1992 All Cri R 530: (1992 Cri LJ 2919)].
44. In the present case, there remains only one dying declaration Ex. Ka-4, recorded by Sub-Divisional Magistrate in the words exactly stated by the deceased. Other two dying declarations have been discarded by us and thus, there is not more than one dying declaration in the present case so far as complicity of the appellant is concerned. As already stated, Smt. Uma Devi received burn injuries on account of sprinkling of kerosene oil on her and she died on account of said burn injuries. These injuries could have been either homicidal, suicidal or accidental. The husband of the deceased at the relevant time was in service at Bombay and there is nothing to show that she was not happy with her husband. In fact, the deceased was a young girl aged about 23 years with all hopes of living a happy married life in future with her husband. Har Dayal P.W.1 has deposed that his daughter and son-in-law were on good terms. Suicide is ruled out. At the relevant time she was living with her Jeth Sant Gopal and his family and the incident had admittedly taken place inside the house of Sant Gopal accused. In reply to question No. 2 the accused Sant Gopal had admitted that the deceased was living in his house at the time of occurrence. No explanation has come from the accused Sant Gopal or other members of his family regarding the occurrence.
45. The evidence of Dr. G.P. Chaudhry P.W. 5 bears out that smell of kerosene was present and Smt. Uma Devi had received burn injuries due to kerosene burning and said injuries could have been received by her on 8-2-1990 at 7/7-30 P.M. The statement of the deceased in the dying declaration Ex. Ka-4 goes to show that kerosene oil was poured on her and she was ignited by her elder and middle Jeths, names being Sant Gopal and Sri Ram. This statement coupled with medical evidence, leaves no room for doubt that it was the case of homicide and accused Sant Gopal was one of the persons who had poured kerosene on her and set her on fire.
46. The occurrence has taken place inside the house of Sant Gopal appellant and no explanation whatsoever has come forth from him regarding occurrence. On the other hand, he has feigned ignorance about the occurrence and even about the death of Smt. Uma Devi on account of burn injuries caused by him. There is no basis to discard dying declaration Ex-Ka-4 of the deceased Smt. Uma Devi which was recorded by the Sub-Divisional Magistrate Sri Deva Sheesh Panda P.W. 3 in the very words of the deceased unattended by the interested persons. The evidence of Sri Deva Sheesh Panda P.W. 3 and Dr. S.C. Dube P.W. 6 proves beyond reasonable doubt that Smt. Uma Devi was fully conscious and she was in fit condition to speak. Sri Deva Sheesh Panda P.W. 3 has made statement to that effect on oath. He also deposed that Dr. S.C. Dube gave certificates before and after he had recorded dying declaration of Smt. Uma Devi. Dr. S.C. Dubey, P.W. 6 testified to the effect that before and after her dying declaration was recorded he had given certificates Exs.-Ka-10 and Ka-11 in the beginning and in the end respectively. He has also categorically deposed that Smt. Uma Devi was in a fit condition to speak and she was conscious. This has not been disputed or controverted. There is no dispute that when deceased made Ex. Ka-4 dying declaration, she was in a fit mental condition. Sri Deva Sheesh Panda P.W. 3 categorically deposed that he recorded the dying declaration Ex. Ka-4 and whatever she had stated was literally recorded by him and after it was written it was read over to Smt. Uma Devi who thereafter affixed her thumb impression. This has also not been controverted or disputed.
47. The learned Counsel for the appellant has cited AIR 1976 SC 1994: (1976 Cri LJ 1548), K. Ramachandra Reddy v. Public Prosecutor; and ATR 1983 SC 274: (1983 Cri LJ 426), State of Assam v. Mafizuddin Ahmed.
48. In the former case, the case of Khushal Rao, AIR 1958 SC 22: (1958 Cri LJ 106) and Lallu Bhai Dev Chand Shah v. State, AIR 1972 SC 1776: (1972 Cri LJ 828) have been relied and factors on which the Court must be satisfied before relying on dying declarations have been discussed. It has been held that one of the important tests of reliability of dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind. In that case having regard to the surrounding circumstances, dying declaration was not accepted. In that case the circumstances created doubts as the deceased had not made any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assilants. The omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from serious pain and was not able to speak normally, was considered relevant having regard to the surrounding circumstances and therefore, the Supreme Court found it wholly unsafe to base conviction of the appellant on the dying declaration Ex. P. 2. This authority does not govern the facts of the present case in which it has nowhere been disputed that the deceased was in a fit mental condition when she made dying declaration Ex. Ka-4. "The fit state of mind" is in relation to the statement that the dying man is making. What the aforecited case suggests is that the person who records a dying declaration must be satisfied that dying man is making a conscious and voluntary statement with the normal understanding, and the responsibility of the court is greater in holding that it was so made when in fact it is found that the man dies a few minutes afterwards.
49. In the present case the dying declaration Ex. Ka-4 was recorded on 12-2-1990 and the testimony of the Magistrate and the Doctor establishes beyond reasonable doubt that the deceased Smt. Uma Devi was fully conscious and was in a fit mental condition to speak. The deceased Uma Devi had not died few minutes thereafter, but died on 7-3-1990. The aforecited authority thus does not go to help the appellant.
50. In the later case cited by the learned Counsel for the appellant, it has been held that dying declaration can be sole basis of conviction provided it is truthful. In that case, the deceased after receiving burn injuries did not disclose earlier to anyone she met in the hospital that her husband, the accused, sprinkled kerosene oil and set her on fire and it was only when her uncle met her that she made an oral dying declaration to him and later to the Magistrate who recorded her statement and in addition to the fact that there was no thumb impression of the deceased on the declaration, the name of her husband given by the deceased in the declaration was also found to be wrong. The Supreme Court held that it was not outside the realm of probability that her statement may have been inspired by her uncle and, therefore, the High Court was right in setting aside the conviction based upon it. This authority also does not go to help the appellant.
51. The dying declaration Ex. Ka-4, has been challenged on two grounds by the learned Counsel for the appellant, firstly; that it is not in question-answer form and secondly; that it is not a genuine statement and that it is a tutored statement.
52. No doubt the dying declaration Ex. Ka-4, has not been recorded in question-answer form but it is of no consequence. In 1970 Cri LJ 1081: (AIR 1970 Goa 96) Vinayak Dutta v. State, it has been held that it is not an indispensable requirement of law that it should be recorded in a question and answer form, and not in a narrative form. It has been held by the Supreme Court in the case of Ganpat Mahadev Mane v. State of Maharashtra reported in (1992) 6 JT (SC) 177: (1993 Cri LJ 298), that the form by itself is not important. Because of the mere fact that the entire thing is not recorded by way of separate questions and answers, the value of the dying declaration is not detracted. It is also observed that a dying declaration recorded by the Executive Magistrate is entitled to great weight. In the case of Mafabhai Nagarbhai Raval v. State of Gujarat, reported in (1992) 4 JT(SC) 555: (1992 Cri LJ 3710) it was submitted that the Executive Magistrate did not record the dying declaration in the form of questions and answers and that the statement recorded by him cannot be taken to be true version alleged to have been given by the deceased. The trial Judge had found fault with the procedure adopted by the Executive Magistrate. The Supreme Court held that the learned Judge without any basis reached the conclusion that the Executive Magistrate did not record the dying declaration exactly in the words stated by the deceased. It was held that dying declarations by themselves are sufficient to hold the appellant guilty. In the present case, both the Magistrate as well as the Doctor have given evidence that Smt. Uma Devi was fully conscious and was in a fit condition to speak. The very fact that the statement Ex. Ka-4 is a short one and has been made in straightforward manner without any embellishment gives assurance to the fact that whatever was stated by the deceased only was recorded by the Executive Magistrate. Mere fact that it was not in question and answer form does not detract the value of the dying declaration Ex. Ka. 4.
53. The next challenge of the defence is that the deceased gave tutored version. The contention of the learned Counsel for the appellant was that the deceased remained in the hospital for several days and her father and other members of the family also remained there. He has relied on para 14 of the statement of Har Dayal P.W. 1 where he states that in Etawah Hospital he remained with his daughter for 22-24 days. From this statement itself it cannot be inferred that the dying declaration of Smt. Uma Devi was the result of tutoring. Merely because some friends and relatives happened to be with the deceased before her statement was recorded, the statement cannot be thrown out as tutored (see AIR 1979 SC 1181: (1979 Cri LJ 708), Habib Usman v. State of Gujarat.
54. Smt. Uma Devi was admitted in the District Hospital, Etawah on 11-2-90 at 7 PM in the emergency Ward by Doctor A.K. Gupta, P.W. 4. Her statement was recorded on the next day i.e. on 12-2-1990. Though the Magistrate (P.W.3) and the Doctor (P.W. 6) have been subjected to incisive and searching cross-examination but nothing tangible has been brought out to disbelieve their testimony. Sri Deva Sheesh Panda P.W. 3 has categorically deposed that at the time when he recorded the statement of Smt. Uma Devi, he had removed all the persons who were present there. It took about 10 minutes for the Magistrate to record the statement of Smt. Uma Devi. Dr. S.C. Dube (P.W. 6) who had given the certificates deposed that the father of deceased was not present at the time when the Magistrate recorded the dying declaration and that there was no one present at the time except the Magistrate and the Doctor.
55. In a frantic effort to undo the effect of the dying declaration, a suggestion was put to the Magistrate (P.W. 3) that he had recorded the dying declaration on the advice of the family members of Smt. Uma Devi. A suggestion was also put to Dr. Dube (P.W. 6) that the dying declaration was recorded on his advice or on the advice of the father or brother of the deceased. These suggestions have been denied by these witnesses. There is no substance in the suggestion because the Magistrate and the Doctor are independent witnesses and they have no axe to grind against the accused. They have neither any animosity or ill-will against the accused nor any affinity with the deceased or her family members. Had there been tutoring there would have been no difficulty for Smt. Uma Devi in making narration of the occurrence as mentioned by the father Har Dayal (P.W. 1) in the alleged first Dying Declaration. The testimony of Sri Panda (P.W. 3) and Dr. Dubey P.W. (4) leaves no room for doubt that no relation of the deceased or outsider was present at the time of recording of dying declaration and that it was the genuine statement made by Smt. Uma Devi in her own words. Smt. Uma Devi had made statement (Ex. Ka-4) in a most natural manner without any embellishment or concoction and it contains ring of truth. The deceased Smt. Uma Devi made the statement Ex. Ka-4 without any influence or rancour. The occurrence had taken place inside the house at 7/7-30 P.M. It cannot be said that there was mistaken identity of the assailants or that the deceased had no opportunity to see the assailants. The defence has nowhere suggested that the deceased could have no opportunity to observe and identify the assailants. The submissions of the learned Counsel for the appellant has no force.
56. After careful scrutiny of the dying declaration Ex. Ka-4 and on careful consideration of evidence and material on record, and applying the tests laid down by the Supreme Court in the aforecited rulings, we have no compunction in holding that the said dying declaration Ex. Ka-4, is true and voluntary which was duly recorded by the Magistrate, Sri Deva Sheesh Panda P.W.-3 in very words of the deceased who was fully conscious and was in a fit mental condition to make that statement and that the said dying declaration does not suffer from any infirmities.
57. This dying declaration Ex. Ka-4 is sufficient evidence against the accused and can form the sole basis of conviction. It has been held in a catena of cases of Supreme Court that dying declaration can be acted upon without corroboration (See AIR 1985 SC 416: (1986 Cri LJ 836), State of U.P. v. Ram Sagar Yadav; AIR 1983 SC 274: (1983 Cri LJ 426), State of Assam v. Mufijuddin Ahmad; AIR 1976 SC 1994: (1976 Cri LJ 1548), K. Rama Chandra Reddy v. Public Prosecutor; 1976 SCC (Cri) 376: (1976 Cri LJ 1718), Munna Raja v. State v. M.P.; AIR 1948 Allahabad 170: (1948 (49) Cri LJ 140), Kunwar Pal Singh v. Emperor; 1972 SCC (Cri) 13: (1972 Cri LJ 828); Lallu Bhai Dev Chand Shah v. State of Gujarat).
58. Apart from the dying declaration (Ex. Ka-4) there are circumstances which also indicate the complicity of the accused-appellant in the alleged offence. The deceased Smt. Uma Devi died on account of burn injuries inflicted on her inside the house of Sant Gopal. It is admitted to Sant Gopal-appellant in answering to question No. 2 under Section 313, Cr. P.C. that Smt. Uma Devi was inside his house at the time of occurrence. No explanation whatsoever has come forth from the appellant as to how Smt.. Uma Devi received burn injuries inside his house. The appellant instead of giving any explanation feigned ignorance about the death of Smt. Uma Devi on account of burn injuries in Govt. Hospital, Etawah. The appellant himself did not inform the parents of the deceased, nor he made any report regarding the occurrence to the police station. The appellant or any of his family members did not take injured Smt. Uma Devi to the Hospital. Neither the accused, nor any member of his family tried to extinguish the fire which caused burn injuries to Smt. Uma Devi. Even funeral of the deceased Smt. Uma Devi was not performed by the appellant and it was performed by Har Dayal, the father of the deceased. The appellant absurd his guilt by stating that the witnesses have given evidence against him due to enmity and partibandi. This plea, however, is not substantiated by record. There is no eye-witness in this case and the case rests only on dying declaration (Ex. Ka-4) and the circumstances of the case. The Magistrate, Deva Sheesh Panda (P.W. 3) and Dr. S.C. Dubey (P.W. 6) are independent witnesses who have proved the dying declaration and have no ill-will or grudge against the appellant. The deceased was taken to Mahewa Hospital by village people. The appellant claims to have accompanied the injured Smt. Uma Devi on 9-2-1990 to Mahewa Hospital while answering the question No. 5 under Section 313, Cr. P.C. but at the same time he has feigned ignorance about the medical examination of Smt. Uma Devi in Mahewa Hospital. The plea of the accused is palpably false and this false plea further strengthens the evidence of the prosecution regarding the complicity of the appellant in this ghastly offence. The dying declaration (Ex. Ka-4) made by the deceased clearly points out the complicity of the appellant in the offence.
59. As regards the motive, there was no motive for the deceased to have implicated her Jeth falsely. There is no suggestion thrown by the defence in this regard. On the other hand the accused-appellant had motive to commit this ghastly offence on account of greed and avarice for dowry or money. It has come in the statement of Har Dayal (P.W. 1), the father of the deceased, that his daughter had told him that the treatment of the accused persons was not good with her and that they were demanding money in dowry. No doubt, the prosecution has not succeeded fully to prove the dowry demand but the testimony of Har Dayal (P.W. 1) and the last line in the dying declaration (Ex. Ka-4) is sufficient to prove the motive for the accused-appellant to commit the offence. The root cause for killing young bride or daughter-in-law is avarice and greed and all tender feelings which alone make the humanity noble disappear from the heart, as has been observed by Justice S. Mohan of the Supreme Court in the case of Smt. Paniben v. State, (1992 Cri LJ 2919) (supra). Motive is only an important link in a case and by itself is never conclusive. The motive may not even be known to the victim of the crime. The motive may be known to the assassin only and no one else. A crime can take place even without any premeditation or preplanning in the context of a particular situation at the spur of the moment (See AIR 1989 SC 733: (1989 Cri LJ 923), Subedar Tiwari v. State of U.P.). In the present case, there is clear evidence of Smt. Uma Devi regarding the complicity of the appellant which is corroborated by the medical evidence and the circumstances of the case and the conduct of the appellant. The deceased had no motive to falsely implicate the appellant who is her Jeth and to screen the real assailant who had sprinkled kerosene oil on her and set her on fire. Even this slender motive for dowry would trigger or spark off the incident resulting in burn injuries of Smt. Uma Devi which ultimately caused her death.
60. Learned Counsel for the appellant advanced two-fold arguments regarding the falsity of the prosecution case. Firstly, that Smt. Uma Devi at the time of the incident was inside the house of the appellant when other members of his family were also present in the house and as such the appellant cannot be implicated in this case. This contention has no force because Smt. Uma Devi, who is the victim of the occurrence, has categorically named assailants including the appellant. Secondly, that the prosecution evidence should be discarded in view of the inconsistent testimony of Har Dayal (P.W. 1), who had lodged the report (Ex. Ka. 1) but in his further cross-examination he had stated that none had told him the cause of burning and that he had not got the report* scribed and it might have been scribed by his sons. No doubt, this statement was made by Har Dayal (P.W. 1) on 23-4-1991 during his further cross-examination by the defence wherein he also stated that his daughter was not burnt while cooking meals and that he did not know as to how she caught fire on her body and clothes. An argument was built from this statement that the prosecution case regarding the pouring of kerosene and setting fire on Smt. Uma Devi by the accused is false. We have considered this contention but we do not find any force in it. Har Dayal (P.W. 1) is not an eye-witness nor he claims to be so. The aforesaid statement made during the cross-examination by Har Dayal (P.W. 1) is of no consequence and does not destroy the substratum of the prosecution case which mainly rests on dying declaration of Smt. Uma Devi (Ex. Ka-4). It may also be mentioned that Har Dayal (P.W. 1) had categorically deposed that he had got prepared the report (Ex. Ka-1) on which he put his thumb mark and he had given it to Senior Superintendent of Police on which the Senior Superintendent of Police made endorsement and asked him to handover it at Police Station, Bakewar. H.C. Sant Pal Singh (P.W. 2) deposed that on 12-2-1990 Har Dayal along with his son Ram Naresh had filed the typed application at the police station which was registered. The defence has nowhere challenged this F.I.R. lodged by Har Dayal (P.W.I). Even in the bail application before the Sessions Judge it is admitted that Har Dayal (P.W.I) had filed the F.I.R. against the appellant. A suggestion had been put to Har Dayal (P.W. 1) in para 16 that he had lodged a false report but Har Dayal had denied this suggestion. He has stated that he has no personal knowledge about the occurrence and that he lodged the report on the basis of the information received from the villagers. The said contention of the learned Counsel for the appellant has thus no force and the prosecution case cannot be thrown out, nor can be dubbed as a false case merely on the basis of the statement of Har Dayal (P.W. 1) made during further cross-examination.
61. It was argued by the learned Counsel for the appellant that there were also other members in the house and only Sant Gopal-appellant has been charge-sheeted and tried for the alleged offence and that the appellant deserves to get the benefit of doubt on (his score. Learned Govt. Advocate repelled this contention by slating that an application dated 19-12-1991 was moved before the lower court under Section 319, Cr. P.C. regarding Sriram and his wife Smt. Urmila Devi, who were named in the dying-declaration of Smt. Uma Devi (Ex. Ka-4) along with the appellant. This application was, however, not pressed as charge-sheet No. 111-A dated 19-12-90 had been submitted to the court against Sriram and Smt. Urmila Devi. He also stated that final report has been filed against Munshi Lal and Smt. Ladati Devi, who were named in the F.I.R. The contention of the learned Counsel for the appellant has thus no force.
62. The case of the appellant was registered under Section 304B, I.P.C. for the death of Smt. Uma Devi on account of burn injuries caused to her by the appellant. The lower court found the prosecution case not proved under Section 304B, I.P.C. and Section 498A, I.P.C. and it acquitted the accused-appellant of the said offences. The State has not challenged the said finding of the learned Sessions Judge. No doubt, the death of Smt. Uma Devi was caused by burn injuries otherwise than in the normal circumstances within seven years of her marriage. For dowry death, Section 304B, I.P.C. and Section 113B of the Indian Evidence Act have been inserted in the I.P.C. and the Indian Evidence Act with a view to combating the increasing menace of dowry deaths. The argument of the learned Counsel for the appellant that this Section cannot be pressed into play in the present case because the offence of dowry death has not been proved beyond reasonable doubt. This contention has force so far as the applicability of this section is concerned. However, the evidence of dying declaration of the victim Smt. Uma Devi (Ex. Ka-4) cannot be discarded merely because of the absence of the eye-witnesses to corroborate it in the court. To decline to act upon the dying declaration (Ex. Ka-4) which finds corroboration from the medical evidence and the circumstances of the case, is to defeat the cause of justice in the case. The following observation of the Supreme Court may be set out below:
Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent - (See 1989 (4) JT (SC) 38: (1990 Cri LJ 562) (Para 4), Gurbachan Singh v. Satpal Singh).
63. In the present case, the prosecution has made out a prima facie case proving the complicity of the appellant in the alleged offence beyond reasonable doubt as already discussed above. The appellant who is admittedly Jeth of the victim and in whose house the victim was residing at the time of occurrence has not made out any plausible defence and has not given any explanation whatsoever regarding the occurrence in which Smt. Uma Devi received burn injuries inside his house. No doubt, an accused is always entitled to hold his tongue but if he is in a position to explain the alternate theory to his guilt, the absence of explanation assumes importance and has to be taken into account. In the present case the appellant has not thrown any light at all and has not put-forth any explanation in defence which could support any theory or hypothesis compatible with his innocence. The court has also to consider this aspect of the matter. There are no grounds to discard the clinching, cogent and truthful evidence of dying declaration (Ex. Ka-4) coupled with the medical evidence, the circumstances of the case and the conduct of the appellant. The appellant has not been able to create any doubt regarding his complicity in the offence.
64. Consequently, on consideration of the entire facts and circumstances of the case as well as the material on record, we find the accused guilty of the offences punishable under Section 302/34,I.P.C.. and accordingly confirm the judgment and order regarding the conviction of the appellant of the court below.
65. As regards sentence, it may be mentioned that now the death sentence is an exception and life imprisonment is a rule. The determination of sentence in a given case depends upon a variety of considerations, the same being, the nature of the crime, the manner of its commission, the motive which impelled it and the character and antecedents of the accused. The extreme penalty of death has not to be inflicted except in gravest cases of extreme culpability. The death sentence has to be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. The murders are "terrific" and, therefore, the fact of the murder being "terrific" cannot be an adequate reason for imposing the death sentence, otherwise the death sentence will become a rule, not an exception and Section 354(3) will be a dead letter (See AIR 1981 SC 1220: (1981 Cri LJ 726), Munniappan v. State of Tamil Nadu). The learned Sessions Judge has not given any special reasons for awarding the extreme penalty of death. He has only given reasons that the appellant was Jeth of the victim and in Hindu religion Jeth has an important and holy place for a Hindu woman. It is thus not the rarest of the rare case in which death sentence should be imposed. We are unable to agree with the reasoning of the learned Sessions Judge. If the logic of the learned Sessions Judge is accepted, then death sentence will become a rule against all the Jeths in Hindu society. In keeping with a current penological thought and the provision of Section 354(3), Cr. P.C., we do not find any justification for awarding death sentence to the appellant in the absence of any special reasons. In our opinion the sentence of imprisonment for life will be adequate sentence and will meet the ends of justice in the instant case. We may refer to the observations of Sir Walter Moberly at page 48 of his book ""Ethics of Punishment", quoting Benthem:--
The principal end of punishment is to prevent like offences....In many cases it is impossible to redress the evil that is done but it is always possible to take away the will to repeat it....
66. In the result, the appeal fails and is dismissed. The conviction of the appellant under Section 302/34, I.P.C. awarded by the court below is upheld, but the sentence of death awarded by the court below is altered to the sentence of life imprisonment. The reference made by the learned Sessions Judge under Section 366, Cr. P.C. for confirmation of the death sentence is hereby rejected. The appellant is in jail. He shall serve out the altered sentence of imprisonment for life in accordance with law.